Senate Bill 2607

(As Passed the Senate)

AN ACT TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972,
TO PROVIDE THAT NURSING AND OTHER ALLIED HEALTH STUDENTS PERFORMING CLINICAL
TRAINING ARE NOT SUBJECT TO CRIMINAL RECORD BACKGROUND CHECK REQUIREMENTS UNDER
CERTAIN CONDITIONS; TO CODIFY SECTION 37-29-232, MISSISSIPPI CODE OF 1972, TO
REQUIRE FINGERPRINTING AND CRIMINAL BACKGROUND CHECKS FOR HEALTH CARE
PROFESSIONAL/VOCATIONAL TECHNICAL STUDENTS UNDER CERTAIN CONDITIONS; AND FOR
RELATED PURPOSES.

43-11-13.
(1) The licensing agency shall
adopt, amend, promulgate and enforce such rules, regulations and standards,
including classifications, with respect to all institutions for the aged or
infirm to be licensed under this chapter as may be designed to further the
accomplishment of the purpose of this chapter in promoting adequate care of
individuals in those institutions in the interest of public health, safety and
welfare. Those rules, regulations and
standards shall be adopted and promulgated by the licensing agency and shall be
recorded and indexed in a book to be maintained by the licensing agency in its
main office in the State of Mississippi, entitled "Rules, Regulations and
Minimum Standards for Institutions for the Aged or Infirm" and the book
shall be open and available to all institutions for the aged or infirm and the
public generally at all reasonable times.
Upon the adoption of those rules, regulations and standards, the
licensing agency shall mail copies thereof to all those institutions in the
state that have filed with the agency their names and addresses for this
purpose, but the failure to mail the same or the failure of the institutions to
receive the same shall in no way affect the validity thereof. The rules, regulations and standards may be
amended by the licensing agency, from time to time, as necessary to promote the
health, safety and welfare of persons living in those institutions.

(2)
The licensee shall keep posted in a conspicuous place on the licensed
premises all current rules, regulations and minimum standards applicable to
fire protection measures as adopted by the licensing agency. The licensee shall furnish to the licensing agency
at least once each six (6) months a certificate of approval and inspection by
state or local fire authorities.
Failure to comply with state laws and/or municipal ordinances and
current rules, regulations and minimum standards as adopted by the licensing
agency, relative to fire prevention measures, shall be prima facie evidence for
revocation of license.

(3)
The State Board of Health shall promulgate rules and regulations
restricting the storage, quantity and classes of drugs allowed in personal care
homes. Residents requiring
administration of Schedule II Narcotics as defined in the Uniform Controlled
Substances Law may be admitted to a personal care home. Schedule drugs may only be allowed in a
personal care home if they are administered or stored utilizing proper
procedures under the direct supervision of a licensed physician or nurse.

(4) (a)
Notwithstanding any determination by the licensing agency that skilled
nursing services would be appropriate for a resident of a personal care home, that
resident, the resident's guardian or the legally recognized responsible party
for the resident may consent in writing for the resident to continue to reside
in the personal care home, if approved in writing by a licensed physician. However, no personal care home shall allow
more than two (2) residents, or ten percent (10%) of the total number of
residents in the facility, whichever is greater, to remain in the personal care
home under the provisions of this subsection (4). This consent shall be deemed to be appropriately informed consent
as described in the regulations promulgated by the licensing agency. After that written consent has been
obtained, the resident shall have the right to continue to reside in the
personal care home for as long as the resident meets the other conditions for
residing in the personal care home. A
copy of the written consent and the physician's approval shall be forwarded by
the personal care home to the licensing agency.

(b) The State Board of Health
shall promulgate rules and regulations restricting the handling of a resident's
personal deposits by the director of a personal care home. Any funds given or provided for the purpose
of supplying extra comforts, conveniences or services to any resident in any
personal care home, and any funds otherwise received and held from, for or on
behalf of any such resident, shall be deposited by the director or other proper
officer of the personal care home to the credit of that resident in an account
that shall be known as the Resident's Personal Deposit Fund. No more than one (1) month's charge for the
care, support, maintenance and medical attention of the resident shall be
applied from the account at any one time.
After the death, discharge or transfer of any resident for whose benefit
any such fund has been provided, any unexpended balance remaining in his
personal deposit fund shall be applied for the payment of care, cost of
support, maintenance and medical attention that is accrued. If any unexpended balance remains in that resident's
personal deposit fund after complete reimbursement has been made for payment of
care, support, maintenance and medical attention, and the director or other
proper officer of the personal care home has been or shall be unable to locate
the person or persons entitled to the unexpended balance, the director or other
proper officer may, after the lapse of one (1) year from the date of that
death, discharge or transfer, deposit the unexpended balance to the credit of
the personal care home's operating fund.

(c) The State Board of Health
shall promulgate rules and regulations requiring personal care homes to
maintain records relating to health condition, medicine dispensed and
administered, and any reaction to that medicine. The director of the personal care home shall be responsible for
explaining the availability of those records to the family of the resident at
any time upon reasonable request.

(d) The State Board of Health
shall evaluate the effects of this section as it promotes adequate care of
individuals in personal care homes in the interest of public health, safety and
welfare. It shall report its findings
to the Chairmen of the Public Health and Welfare Committees of the House and
Senate by January 1, 2003. This
subsection (4) shall stand repealed June 30, 2004.

(5)
(a) For the purposes of this
subsection (5), the term "licensed entity" means a hospital,
nursing home, personal care home, home health agency or hospice. For the purposes of this subsection (5),
the term "employee" means any individual employed by a licensed
entity. The term "employee"
also includes any individual who by contract provides to the patients,
residents or clients being served by the licensed entity direct, hands-on,
medical patient care in a patient's, resident's or client's room or in
treatment or recovery rooms. Nursing
and other allied health students performing clinical training in a licensed
entity under contracts between their schools and the licensed entity are not
"employees" for the purposes of this subsection, if (i) such student
is under the direct and immediate supervision of a licensed health care
provider, and (ii) the student has signed an affidavit which is on file at the
student's school stating that he or she has not been convicted of or pleaded
guilty or nolo contendere to a felony listed in paragraph (d) of this
subsection (5), or that any such conviction or plea was reversed on appeal or a
pardon was granted for the conviction or plea.
Provided, however, that the health care professional/vocational
technical academic program in which the student is enrolled may require such
student to obtain criminal records background checks pursuant to the provisions
of Section 37-29-232, Mississippi Code of 1972.

(b)
Under regulations promulgated by the State Board of Health, the
licensing agency shall require to be performed a criminal history record check
on (i) every new employee of a licensed entity who provides direct patient care
or services and who is employed on or after July 1, 2003, and (ii) every
employee of a licensed entity employed before July 1, 2003, who has a
documented disciplinary action by his or her present employer.

Except as otherwise provided in paragraph
(c) of this subsection (5), no such employee hired on or after
July 1, 2003, shall be permitted to provide direct patient care until the
results of the criminal history record check have revealed no disqualifying
record or the employee has been granted a waiver. In order to determine the employee applicant's suitability for employment,
the applicant shall be fingerprinted.Fingerprints
shall be submitted to the licensing agency from scanning, with the results
processed through the Department of Public Safety's Criminal Information
Center. If no disqualifying record is
identified at the state level, the fingerprints shall be forwarded by the
Department of Public Safety to the Federal Bureau of Investigation for a
national criminal history record check.
The licensing agency shall notify the licensed entity of the results of
an employee applicant's criminal history record check. If the criminal history record check
discloses a felony conviction, guilty plea or plea of nolo contendere to a
felony of possession or sale of drugs, murder, manslaughter, armed robbery,
rape, sexual battery, sex offense listed in Section 45-33-23(f), child abuse,
arson, grand larceny, burglary, gratification of lust or aggravated assault, or
felonious abuse and/or battery of a vulnerable adult that has not been reversed
on appeal or for which a pardon has not been granted, the employee applicant
shall not be eligible to be employed at the licensed entity.

(c)
Any such new employee applicant may, however, be employed on a temporary
basis pending the results of the criminal history record check, but any
employment contract with the new employee shall be voidable if the new employee
receives a disqualifying criminal record check and no waiver is granted as
provided in this subsection (5).

(d)
Under regulations promulgated by the State Board of Health, the
licensing agency shall require every employee of a licensed entity employed
before July 1, 2003, to sign an affidavit stating that he or she has not been
convicted of or pleaded guilty or nolo contendere to a felony of possession or
sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any
sex offense listed in Section 45-33-23(f), child abuse, arson, grand larceny,
burglary, gratification of lust, aggravated assault, or felonious abuse and/or
battery of a vulnerable adult, or that any such conviction or plea was reversed
on appeal or a pardon was granted for the conviction or plea.No such employee of a licensed entity hired
before July 1, 2003, shall be permitted to provide direct patient care until
the employee has signed the affidavit required by this paragraph (d). All such existing employees of licensed
entities must sign the affidavit required by this paragraph (d) within six (6)
months of the final adoption of the regulations promulgated by the State Board
of Health. If a person signs the
affidavit required by this paragraph (d), and it is later determined that the
person actually had been convicted of or pleaded guilty or nolo contendere to
any of the offenses listed in this paragraph (d) and the conviction or plea has
not been reversed on appeal or a pardon has not been granted for the conviction
or plea, the person is guilty of perjury.
If the offense that the person was convicted of or pleaded guilty or
nolo contendere to was a violent offense, the person, upon a conviction of
perjury under this paragraph, shall be punished as provided in Section 97-9-61. If the offense that the person was convicted
of or pleaded guilty or nolo contendere to was a nonviolent offense, the
person, upon a conviction of perjury under this paragraph, shall be punished by
a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in
the county jail for not more than six (6) months, or by both such fine and
imprisonment.

(e)
The licensed entity may, in its discretion, allow any employee who is
unable to sign the affidavit required by paragraph (d) of this subsection (5)
or any employee applicant aggrieved by the employment decision under this
subsection (5) to appear before the licensed entity's hiring officer, or his or
her designee, to show mitigating circumstances that may exist and allow the
employee or employee applicant to be employed at the licensed entity. The licensed entity, upon report and
recommendation of the hiring officer, may grant waivers for those mitigating circumstances,
which shall include, but not be limited to:
(i) age at which the crime was committed; (ii) circumstances surrounding
the crime; (iii) length of time since the conviction and criminal history since
the conviction; (iv) work history; (v) current employment and character
references; and (vi) other evidence demonstrating the ability of the individual
to perform the employment responsibilities competently and that the individual
does not pose a threat to the health or safety of the patients in the licensed
entity.

(f)
The licensing agency may charge the licensed entity submitting the
fingerprints a fee not to exceed Fifty Dollars ($50.00), which licensed entity
may, in its discretion, charge the same fee, or a portion thereof, to the
employee applicant. Any costs incurred
by a licensed entity implementing this subsection (5) shall be reimbursed as an
allowable cost under Section 43-13-116.

(g)
If the results of an employee applicant's criminal history record check
reveals no disqualifying event, then the licensed entity shall, within two (2)
weeks of the notification of no disqualifying event, provide the employee
applicant with a notarized letter signed by the chief executive officer of the
licensed entity, or his or her authorized designee, confirming the employee
applicant's suitability for employment based on his or her criminal history
record check. An employee applicant may
use that letter for a period of two (2) years from the date of the letter to
seek employment at any licensed entity without the necessity of an additional
criminal record check. Any licensed
entity presented with the letter may rely on the letter with respect to an
employee applicant's criminal background and is not required for a period of
two (2) years from the date of the letter to conduct or have conducted a
criminal history record check as required in this subsection (5).

(h)
The licensing agency, the licensed entity, and their agents, officers,
employees, attorneys and representatives, shall be presumed to be acting in
good faith for any employment decision or action taken under this subsection
(5). The presumption of good faith may
be overcome by a preponderance of the evidence in any civil action. No licensing agency, licensed entity, nor
their agents, officers, employees, attorneys and representatives shall be held
liable in any employment decision or action based in whole or in part on
compliance with or attempts to comply with the requirements of this subsection
(5).

SECTION 2. The following provision shall be codified as Section 37-29-232,
Mississippi Code of 1972:

37-29-232. (1)
For purposes of this section, health care professional/vocational
technical student shall be defined as a student enrolled in an academic program
in medicine, nursing, dentistry, occupational therapy, physical therapy, social
services, nutrition services, speech therapy, or other allied health
professional whose purpose is to prepare professionals to render patient care
services.

(2) The dean or director of the health care
professional/vocational technical academic program is authorized to ensure that
criminal records background checks and fingerprinting are obtained on their
students prior to their beginning any clinical rotation in a licensed health
care entity and that such criminal record information and registry checks are
on file at the academic institution. In
order to determine the student's suitability for the clinical rotation, the
student shall be fingerprinted. If no
disqualifying record is identified at the state level, the fingerprints shall
be forwarded by the Department of Public Safety, the Department of Health, or
any other legally authorized entity to the FBI for a national criminal history
record check. The fee for such
fingerprinting and criminal history record check shall be paid by the
applicant, not to exceed One Hundred Dollars ($100.00); however, the academic
institution in which the student is enrolled, in its discretion, may elect to
pay the fee for the fingerprinting and criminal record check on behalf of any
applicant. Under no circumstances shall
the academic institution representative or any individual other than the
subject of the criminal history record checks disseminate information received
through any such checks except insofar as required to fulfill the purposes of
this section.

(3) If such fingerprinting or criminal record
checks disclose a felony conviction, guilty plea or plea of nolo contendere to
a felony possession or sale of drugs, murder, manslaughter, armed robbery,
rape, sexual battery, sex offense listed in Section 45-31-3(I), child abuse,
arson, grand larceny, burglary, gratification of lust or aggravated assault
which has not been reversed on appeal or for which a pardon has not been
granted, the student shall not be eligible to be admitted to such health
professional academic program of study.
Any preadmission agreement executed by the health professional academic
program shall be voidable if the student receives a disqualifying criminal
record check. However, the academic
health program administration may, in its discretion, allow any applicant
aggrieved by the admissions decision under this section to appear before an
appeals committee or before a hearing officer designated for such purpose, to
show mitigating circumstances which may exist and allow the student to be
admitted to or continue in the program of study. The health profession academic program may grant waivers for such
mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed;
(b) circumstances surrounding the crime; (c) length of time since the
conviction and criminal history since the conviction; (d) work history; (e)
current employment and character references; (f) other evidence demonstrating
the ability of the student to perform the clinical responsibilities competently
and that the student does not pose a threat to the health or safety of patients
in the licensed entities in which they will be conducting clinical
experiences. The health professional
academic program shall provide assurance to the licensed entity in which the
clinical rotation is planned that the results of a health professional
student's criminal history record check would not prohibit their being able to
conduct their clinical activities in the facility, institution, or
organization. Such criminal history
record check shall be valid for the course of academic study provided that
annual disclosure statements are provided to the health professional academic
program regarding any criminal activity that may have occurred during the
student's tenure with the health professional academic program. The criminal history record check may be
repeated at the discretion of the health professional academic program based on
information obtained during the annual disclosure statements. In extenuating circumstances, should a
criminal history record check be initiated and the results not be available at
the time the clinical rotation begins, the academic institution in which the
student is enrolled, at its discretion, may require a signed affidavit from the
student assuring compliance with this act.
Said affidavit will be considered null and void within sixty (60) days
of its signature.

(4) Criminal history record checks that are done
as part of the requirements for participation in the health professional/
vocational technical academic program may not be used for any other purpose
than those activities associated with their program of study. Students who may be employed as health
professionals outside of their program of study may be required to obtain
additional criminal history record checks as part of their employment agreement.

(5)
No health professional/vocational technical academic program or academic
health program employee shall be held liable in any admissions discrimination
suit in which an allegation of discrimination is made regarding an admissions
decision authorized under this section.

SECTION 3. This act shall take effect and be in force
from and after July 1, 2004.